The author is a Forbes contributor. The opinions expressed are those of the writer.

Loading ...

Loading ...

This story appears in the {{article.article.magazine.pretty_date}} issue of {{article.article.magazine.pubName}}. Subscribe

Prof. Randy Barnett (Image credit: Getty Images via @daylife)

On Monday, the New York Times ran a short profile of Randy Barnett, the libertarian law professor at Georgetown who has advanced the most influential arguments that Obamacare is unconstitutional. It closes with this non-specific observation about Barnett’s broader philosophy (emphasis mine):

Even a close friend and fellow Georgetown law professor, Lawrence B. Solum, says that Professor Barnett is aware of the “big divide between his views and the views of lots of other people,” and that his political philosophy is “much more radical” than his legal argument in the health care case. Professor Barnett, for his part, insists that if the health law is struck down, it will not “threaten the foundation of the New Deal.” But, he allowed, it would be “a huge symbolic victory for limited government.”

I’ve long been a fan of Barnett’s—he used to contribute more regularly to The Volokh Conspriacy, a blog that I have read for more than a decade—and in 2005, I saw him give an impressive talk at Brown University about his experience arguing the Gonzales v. Raich medical marijuana case before the Supreme Court.

Then, a few years later, the Institute for Humane Studies invited me to a talk Barnett was giving at a Students for Liberty conference at Columbia. At the time, I was living in New York and my then-boyfriend, Dave, was a liberal. I thought this would be a great opportunity to improve Dave’s opinion of libertarianism—not only is Barnett a brilliant guy, but the whole point of the Raich case was to defend states’ power to do something liberals like without interference from federal law enforcement.

So we went to the talk, but Barnett didn’t address medical marijuana. Instead, he made his case for “a polycentric legal order,” a subject on which he has written a book. Put in simple terms, Barnett was advocating for privatized and competing systems of policing and adjudication—anarcho-capitalism.

This talk did not have the effect that I was going for. Midway through Barnett’s remarks, Dave leaned over and whispered in my ear. “This is bats—t insane,” he said. I couldn’t disagree.

I don’t mean this a reason to reject Barnett’s argument against the individual mandate (though I disagree with his take). Indeed, as the Times article notes, one of Barnett’s significant skills is that he makes arguments that draw widespread support while holding other viewpoints that are much less popular. Also, his arguments against Obamacare are claims about what the government is allowed to do, unlike his views on private policing, which relate to what government ought to do.

Still, it’s hard to think of another figure who has managed to be so influential in one policy area while advocating other views so far outside the mainstream. Cass Sunstein might be the closest example, but I don’t think anything he wrote in Nudge is nearly as controversial as the idea that we shouldn’t have public policing and courts.